State v. Stevenson

• Decision Date: 14 December 1920
• Parties: STATE v. STEVENSON.
• Court: Oregon Supreme Court

193 P. 1030

98 Or. 285

STATE v. STEVENSON.

Supreme Court of Oregon

December 14, 1920

In Banc.

Appeal from Circuit Court, Malheur County; Dalton Biggs, Judge.

William Stevenson was convicted of adultery, and he appeals. Reversed, and cause remanded, with direction that defendant be discharged.

William Stevenson, a married man, the defendant and appellant, was indicted by the grand jury of the circuit court of the state of Oregon in and for the county of Malheur, charged with the commission of the crime of adultery with one Ruth Lackey wife of Herbert Lackey, the complaining witness. Upon trial had, the defendant was convicted and sentenced to serve a term of not more than six months in the penitentiary, from which judgment he appeals to this court.

The principal convicting evidence given at the trial was an alleged confession and the testimony of his accomplice. The defendant objected to the introduction of the confession as evidence, and saved an exception to the ruling of the court thereon. At the beginning of the trial, it was stipulated that the prosecution was commenced upon the complaint of Herbert Lackey, spouse of Ruth Lackey. Defendant objected to the introduction of any evidence in the case, for the reason that the prosecution was not based upon the complaint of the wife of the defendant. This question was likewise reserved by asking the court for an order directing the jury to return a verdict of not guilty because "the state has failed to prove that the prosecution was brought upon the complaint of the wife of the defendant," and was saved a third time by excepting to an instruction of the court to the effect that--

"It is sufficient, if you find that Ruth Lackey is the wife of Herbert Lackey, that the prosecution was instigated or instituted by Herbert Lackey, her husband."

W. E Lees, W. H. Brooke, and P.J. Gallagher, all of Ontario, for appellant.

R. W Swagler, Dist. Atty., of Ontario, for the State.

BROWN J. (after stating the facts as above).

Although witness Harry Farmer gave some testimony tending to prove opportunity to commit the offense, a conviction was had in this cause upon the testimony of the defendant's accomplice, corroborated by a confession made in the district attorney's office. The defendant challenged the admissibility of the confession, especially upon the ground and for the reason that the said confession or statement was not taken in accordance with the provisions of section 1781, Or. L., providing as follows:

"When the examination of the witnesses on the part of the state is closed, the magistrate must inform the defendant that it is his right to make a statement in relation to the charge against him; that the statement is designed to enable him, if he sees fit, to answer the charge and explain the facts alleged against him; that he is at liberty to waive making a statement, and that his waiver cannot be used against him on the trial."

The objection, as we take it from the record, was as follows:

"Mr. Gallagher: Now, I desire to object to the introduction of this testimony because there has been no proper foundation made for the introduction of it, because it appears from the testimony so far that this statement was made either immediately after * * * or perhaps before the preliminary hearing had been dispensed with and pending his procuring bail, while he (defendant) was still in custody of the officers of the law, and it has not been shown that the preliminary hearing was through at the time this framed-up written statement was made."

The record discloses that the confession offered and admitted in evidence was not made under the provisions of section 1781, Or. L., and is not governed by the rule there set down. It is true, however, that, before the statutory statement made by a defendant at his preliminary examination before a committing magistrate can be admitted in evidence against him at his trial on a criminal prosecution, it must affirmatively appear that all the commands of section 1781, Or. L., have been executed. To this effect, see State v. Hatcher, 29 Or. 311, 44 P. 584; State v. Andrews, 35 Or. 391, 58 P. 765; State v. Scott, 63 Or. 444, 128 P. 441. The alleged confession that was offered and received in evidence was made to the district attorney at his office, in the presence of the sheriff and deputy, and was no part of the preliminary examination. If the confession is admissible as evidence, it is not because of the provisions of section 1781, Or. L., but because of the fact that it is an extrajudicial confession.

Preliminary to the introduction of the confession into the record of the trial, the sheriff testified that he was present at the defendant's preliminary examination held at Ontario on the 16th day of December, 1919, and, in response to interrogations put by the district attorney, testified as follows:

"Q. Immediately after the preliminary examination, what, if anything, was done? A. We went over for lunch first.

"Q. Who went to lunch? A. Yourself and Judd Heep, Bill Stevenson (defendant), Mr. Farmer, and me.

"Q. That party all go together? A. All together; yes, sir.

"Q. And after lunch, where did that party go? A. Went across and went up to your office.

"Q. Was there anything said after the preliminary by Stevenson with reference to his signing a statement of his--or a confession? A. Why, there was some talk in regard to it. I don't know just the words that was used. * * * I don't know that I could say exactly what he said. All that was said really started from what was said over in the preliminary hearing. That whole conversation started from the statement that he made there. That was talked over after that. * * * He signified his willingness to sign a statement.

"Q. I hand you this, marked State's Ex. 1, for identification, and ask you to examine this91 and state if this was signed by the defendant in your presence as a witness. A. Yes, it was.

"Q. Was that read by the defendant before he signed it in your presence, handed to him for reading? A. It was handed to him for reading; yes, sir.

"Q. And did he read it, as far as you know? A. Well, as far as I know, yes.

"Q. Was there at that time, or at any other time in your presence, any statement made to this defendant offering him immunity or reducing his punishment, or any threats of prosecution such as to induce the making of this statement? A. None.

"Q. Or anything that would tend to produce such a statement? A. No.

"Q. And you were present at the time of it being prepared and while he signed it? A. I was."

Witness testified that he thought Mr. Swagler, the district attorney, wrote the statement that the prisoner signed, and the prosecutor admitted that he prepared the writing.

Witness Farmer testified:

"Q. Were you present at all times when this confession was being prepared and while the defendant was there? A. Yes, sir.

"Q. Was there any promises of any nature or character offered to him if he made a confession of this character? A. No, sir; I think not. * * *

"Q. Was there any promise of reward made to him for signing a confession or this confession? A. No, sir; not in my presence.

"Q. Was there any promise of immunity made to him, or protection or lessened punishment, by reason of signing that statement? A. No, sir; not that I know of.

"Q. Was there any threat or statements sounding like threats that induced him to sign that confession? A. Nothing that I seen or heard.

"Q. And you were there, present, during the time that was being prepared, in the same room, and signed as a witness immediately afterward, did you not? A. Yes, sir."

The term "confession," in criminal law, has been defined to be "the voluntary admission or declaration made by a person who has committed a crime or misdemeanor, to another, of the agency or participation which he had in the same." "Judicial confessions" are those made before a magistrate or in court in the due course of legal proceedings. "Extrajudicial confessions" are those made by the party elsewhere than before a magistrate or in open court. 1 Bouvier, 588.

The common-law rules governing the admissibility of confessions are still in force in Oregon. Therefore a confession is not admissible in evidence where it is obtained by temporal inducement, by threats, fear, promise, or hope of favor held out to the party in respect to his escape from the charge against him by a person in authority. State v. Wintzingerode, 9 Or. 153; State v. Garrison, 59 Or. 440, 117 P. 657; State v. Morris, 83 Or. 429, 163 P. 567; Garrard v. State, 50 Miss. 147; Flagg v. People, 40 Mich. 706. It was held in the case of State v. Moran, 15 Or. 265, 14 P. 421, in an opinion by Strahan, J., that--

"Upon the trial of a criminal case, * * * whenever a confession is offered in evidence against the accused, it becomes necessary for the court to ascertain and determine whether or not the confession has been obtained by the influence of hope or fear applied by a third person to the prisoner's mind. This inquiry is preliminary, and is addressed to the judge."

The foregoing statement of law is approved in State v. Andrews, 35 Or. 391, 58 P. 765; State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234, 2 Ann. Cas. 431; State v. Blodgett, 50 Or. 329, 92 P. 820; State v. Spanos, 66 Or. 118, 134 P. 6; and State v. Morris, 83 Or. 429, 163 P. 567. The competency of a confession as evidence is, in the first instance, addressed to the court, and its determination will not be disturbed on appeal unless the record discloses clear and manifest error. State v. Rogoway, supra; State v. Blodgett, supra; State v. Spanos, supra; State v. Morris, supra. In a specially concurring opinion in the case of State v. Morris, supra, Justice Harris says:

"This quality of voluntariness, so

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